Durham man challenges law on sex offenders and social networking sites

On April 27, 2010, Lester Gerard Packingham Jr., a 29-year-old Durham resident and registered sex offender who had sexual intercourse with a 13-year-old girl when he was 21, logged onto his Facebook account with his username, "J.r. Gerrard."

"Man God is Good!" he wrote on his profile page near his photo. In it, he posed as a blinged-out, fedora-topped model in art class spoof from college. "How about I got so much favor they dismissed the ticket before court even started. No fine. No court cost, no nothing spent ... Praise be to GOD, WOW! Thanks, JESUS!"

What Packingham didn't know was that the Durham Police Department was engaged in a sting against sex offenders. A few days later, Cpl. Brian Schnee saw the post, studied the photo and hypothesized Packingham was the man behind the profile page. Schnee then reviewed recently dismissed traffic citations in Durham County and noticed that a ticket issued to Packingham had been dropped on April 27.

Schnee prepared a search warrant, and Durham law enforcement entered Packingham's house and confiscated various items, including three cellphones, a thumb drive and a hard copy of the profile picture. They found nothing related to victimizing children.

Two months later, Durham's district attorney indicted Packingham for use of a commercial social networking site. Packingham was convicted in Durham County Superior Court in May 2012.

North Carolina is one of a handful of states to have enacted social-networking bans for sex offenders. From 2009 through the end of last year, North Carolina prosecutors levied 1,136 charges against registered sex offenders suspected of using Facebook and similar sites. The total has dropped significantly since 2009, when the majority of the charges were lodged.

Packingham fought back, challenging the law's constitutionality. Last Thursday, inside a standing-room-only courtroom in Raleigh, a three-judge panel for the North Carolina Court of Appeals heard oral arguments in State v. Packingham.

The case is complex. Judges must balance the rights of sex offenders with the need to keep children safe. Yet they must predict the future of a rapidly morphing digital landscape that has rendered 2008, the year the law was enacted, the equivalent of the Neolithic Era.

Against this backdrop the court must weigh several questions: What constitutes a social networking site? What does it mean to "access" one? Has Facebook become an essential tool for day-to-day business and communicating? Should sex offenders who committed sexual battery against another adult face the same restrictions as child molesters? Is entering a virtual world on a computer screen the same thing as walking into a schoolyard or playground?

"In some ways, social networks might present more of a risk," attorney Walter Dalton, the former Democratic state senator who sponsored the bill, told me. "In a day care setting, there's an adult watching things with controlled access. In an online conversation, no one knows what's going on or being said."

Packingham's lawyer, Glenn Gerding, addressed the appellate judges last week, suggesting that his client, who on his Facebook page described himself as "a slave to Christ," was being punished simply for expressing his religious beliefs.

Gerding focused his arguments largely on the First Amendment. "The state is telling people they cannot engage in speech before the speech is even made," said Gerding, a former active-duty defense attorney with the U.S. Navy JAG Corps. He contended that the statute was overbroad and vague, and named several websites that could be construed as social networks, including BettyCrocker.com, Amazon.com and even Google. (The statute defines a social network as a website that, among other things, "Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.")

Gerding argued that Facebook is essential in today's digital era. Telling someone he can't use Facebook is like taking away his watch and giving him a sundial, he contended.

Assistant Attorney General David Elliott tried to persuade the judges that this case isn't about expression, but rather about location.

"The analogy is a restriction that keeps a sex offender from going to a school," said Elliott, a broad-shouldered, baby-faced prosecutor who has written a children's book titled My First Fish. "It's a regulation on where they can go, not what they can say."

Judge Martha Geer pushed back, arguing that the Internet, by definition, was an outlet for speechnot a physical place. She and Elliott sparred over several points, including the law's ambiguity. Geer pressed Elliott as to whether Gmail, Hotmail and AOL could be construed as social networks. (Answers: yes, most likely and maybe.)

Geer's voice grew heated at times, and at one point she hammered her hands on the papers in front of her, incredulous that the state presented no data suggesting that banning all sex offenders from Facebook protects children.

Elliott didn't have much to work with. "There is no empirical data, only anecdotal information, because it's not possible to statistically quantify anything on the Internet," explained Carolyn Atwell-Davis, vice president for policy and governmental affairs for the National Center for Missing & Exploited Children.

Kenneth V. Lanning, a retired FBI agent who specializes in investigating crimes against children, said, "This falls under the category of what I call 'feel-good legislation,' meaning society says it's great to ban all these guys from the Internet. But if you look at the population of people who victimize children, you realize it's diverse, without a one-size-fits-all solution."

A few days after the oral arguments, I stopped by Packingham's house early one morning, while he was reading the Rev. Rick Warren's The Purpose Driven Life. Now 32, Packingham is tall and athletic, with a trim goatee and small black earrings.

Sitting on top of his computer keyboard was a note: "Look up U.S. Declaration of Independence." His house was decorated with posters promoting his business, a Christian-inspired sports apparel company that doubles as a ministry. Packingham told me he found Christ in 2005 and gives motivational talks at colleges and churches.

Packingham said he was initially disappointed about being caught on Facebook, because he thought the law was "ridiculous" in its application to him. He said he's not a pedophile, and that he used Facebook to communicate with church friends. But over time he grew more skeptical about the law's fairness in general. "There are many degrees of people out there," he said, referring to sex offenders. "Why shouldn't we be able to speak to other people? We're all human beings."

When I asked him about how his victim, now in her 20s, might feel about this, he paused. "It depends on her maturity and the path she's taken," he said. At the time of the incident they were dating, Packingham said, adding that he never knew her age, but he acknowledged that his actions were wrong.

Gripping his devotional, he said the experience was his "wake-up call." "I can't say [being a registered sex offender] hasn't been hard, and I can't take back the things I did. But in a weird way those things made me the man I am today."

There is no date for the appellate court's decision, but based on precedent, Packingham has a solid shot at getting the law overturned. Federal judges in Louisiana and Nebraska have ruled that such dragnet statutes are unconstitutional. In 2008 an Indiana district judge upheld the constitutionality of that's state's social network ban, but this past January the Seventh Circuit Court of Appeals in Chicago reversed the decision. The circuit judges ruled that the statute wasn't sufficiently tailored to the "targeted evil."

Gerding, the defense attorney, contends there are other, more easily enforceable statutes to protect children, including cyber-stalking laws, statutes prohibiting the enticement of minors online and a law requiring registered sex offenders to disclose all their online identifiers to local sheriffs.

But the issue remains unresolved. Rather than rule on the law in general, the judges could rule on the law only as it applies to Packingham.

Facebook is "the largest commercial social networking site on the planet," Elliott, the prosecutor, told the judges. And Packingham, he added, "is exactly the type of person who the legislation wanted to keep away from children."